Citation Nr: 1514356
Decision Date: 04/02/15 Archive Date: 04/09/15
DOCKET NO. 03-34 207A ) DATE
)
)
Received from the
Department of Veterans Affairs Regional Office in Chicago, Illinois
THE ISSUE
1. Entitlement to service connection for a right leg disorder.
2. Entitlement to service connection for a left leg disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
C. Fleming, Counsel
INTRODUCTION
The Veteran had active military service from November 2000 to June 2002.
This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, in which the RO denied the claims on appeal. The Board denied the Veteran's claims for service connection in April 2014. The Veteran thereafter appealed that determination to the United States Court of Appeals for Veterans Claims (Court). In a February 2015 order, the Court granted a joint motion for remand, vacating the April 2014 Board decision and remanding the matter for additional proceedings consistent with the joint motion.
The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in August 2006. A transcript of the hearing has been associated with the Veteran's claims file.
REMAND
The Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the Veteran's claim for service connection for right and left leg disorders. The Court has held that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated that, if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id.
Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b).
In addition, certain chronic diseases, including organic diseases of the nervous system, may be presumed to have been incurred during service if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2014).
Regarding the Veteran's service connection claims, the Board acknowledges that the Veteran contends that she has disorders of the right and left legs that she believes are related to service. In particular, the Board notes that the Veteran stated at her August 2006 hearing before the undersigned Veterans Law Judge that she has been diagnosed with restless leg syndrome that she believes is related to service.
Regarding diagnosis of the Veteran's claimed leg disabilities, the Board notes that although the Veteran was seen during service for complaints of pain in her knee and ankle joints, no complaints or diagnoses of leg problems such as cramps or spasms are present in the record prior to her April 2002 separation report of medical history. At that time, however, the Veteran responded "Yes" when asked if she experienced leg cramps and trouble sleeping, and she submitted an addendum to the report in which she complained of "unexplained irritating numbness and pain in both calves" as well as trouble sleeping since her deployment to Afghanistan. In the "Physician's Summary" portion of the document, the examiner acknowledged the Veteran's report of cramps, numbness, and left leg pain, but no diagnosis was assigned at the time, and her lower extremities were found to be normal bilaterally at her May 2002 separation medical examination.
Post-service treatment records reflect that the Veteran was seen in July 2002, one month after her separation from active duty, with complaints of left ankle and knee pain that caused calf pain and numbness. At that time, she was diagnosed with ankle pain and "poor circulation." She underwent testing of her lower extremities in August 2002, at which time no peripheral vascular disease was noted and no other diagnosis was assigned. She underwent physical therapy in 2004 at the Captain James A. Lovell Federal Health Care Center for what was then identified as "myalgia" of her legs. Records further show that the Veteran has been seen on multiple occasions for complaints of muscle pain and spasms in her legs and was first assigned rule-out diagnoses of restless leg syndrome at January 2006 and April 2006 VA treatment visits. At an October 2007 sleep study conducted at the VA Caribbean Healthcare System in San Juan, Puerto Rico, she was assigned a diagnosis of periodic limb movement disorder. She has continued to seek treatment for restless leg syndrome and periodic limb movement disorder since that time.
The Veteran has also submitted statements from herself and her husband, and she testified before the undersigned Veterans Law Judge at a hearing in August 2006. A letter from the Veteran's husband dated in March 2006 indicates that he had witnessed her leg cramps and knew she had been prescribed medication to treat restless leg syndrome. Similarly, at her August 2006 hearing, the Veteran contended that she first experienced pain in her legs in service and that she continues to experience the same type of pain in her legs, which she attributed to restless leg syndrome that she believed to be related to service.
The Veteran was provided VA examinations in February 2003, January 2005, January 2007, May 2012, and October 2012 pursuant to her claims for service connection. At the February 2003 examination, the examiner noted that the Veteran stated explicitly that her leg cramps referred to pain in her knees and ankles, not to a separate problem with her legs. No opinion or diagnosis was assigned. At the January 2005 VA examination, the Veteran specifically complained of experiencing spasms in her calf muscles bilaterally that interfered with her sleep; however, the examiner at that time failed to provide a diagnosis related to the Veteran's complaints or address whether any such disability existed or was etiologically linked to her time on active duty. Similarly, at the January 2007 VA examination, the examiner addressed only the Veteran's complaints of joint pain in her knees and ankles; no evaluation of any leg cramps or diagnosis of periodic limb movement disorder or other such disability was made or ruled out.
The Veteran again underwent VA examination in May 2012. At that time, the examiner diagnosed her with periodic limb movement disorder and noted that the Veteran "has had RLS [restless leg syndrome] for 8-9 years," finding that she experienced daytime sleepiness and a sleep disorder due to restless leg syndrome. However, despite also noting the Veteran's complaints that she first experienced symptoms in service, the examiner offered a negative etiological opinion. In so finding, the examiner stated only that the cause of her periodic limb movement disorder and restless leg syndrome "is not clear." To obtain clarity concerning the Veteran's diagnoses and their etiology, the AOJ obtained a second VA examination in October 2012. At that time, however, the examiner merely found that, "based on records," he was "unable to determine with greater than 50% probability that the claimant's condition is service connected without resorting to mere speculation."
Faced with these findings, and pursuant to the Board's July 2013 remand, the AOJ again scheduled the Veteran for VA examination, which was conducted in November 2013. At that time, the examiner diagnosed the Veteran with bilateral restless leg syndrome but concluded that the disorder was less likely than not related to service. In so finding, the examiner acknowledged the Veteran's contentions that her symptoms began in service but noted that there was no documentation of any such disorder in service and observed that the first indication of any leg movements during sleep occurred in 2005, approximately three years after her separation from service. Thus, the examiner concluded, it is less likely than not that any current restless leg syndrome is etiologically linked to the Veteran's time in service. However, as noted by the parties to the February 2015 joint motion, the November 2013 VA examiner failed to consider the Veteran's April 2002 response of "Yes" on her separation report of medical history when asked if she experienced leg cramps or trouble sleeping, or her contemporaneous report of trouble sleeping and "unexplained irritating numbness and pain in both calves." The examiner also failed to consider the July 2002 post-service visit for complaints of calf pain and numbness associated with left ankle and knee pain. In addition, the examination report appears to indicate that the date of diagnosis of the Veteran's restless leg syndrome is "2000 or 2001," although it is unclear whether the examiner or the Veteran made that report.
In that connection, the Board notes that the Veteran has contended, both to VA and to her treatment providers, that she first experienced problems with her legs in service, which problems have continued to the present. These contentions appear to be borne out by the reports she made in April 2002, as well as her July 2002 post-service treatment visit for similar complaints. The Board notes that the Veteran is qualified, as a lay person, to report that she suffered pain or injury during service that has continued to the present. See Savage, 10 Vet. App. at 495. However, she is not competent to provide a medical opinion as to the etiology or onset of a disability such as restless leg syndrome or periodic limb movement disorder that requires specialized testing to diagnose. See Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, once VA undertakes the effort to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr, 21 Vet. App. at 311; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision").
Although the November 2013 VA examiner conducted a proper evaluation of the Veteran's physical condition at the time, the Board finds that the examiner appears to have failed to consider the Veteran's April 2002 statement on her separation report of medical history concerning "unexplained irritating numbness and pain in both calves" as well as trouble sleeping since her deployment to Afghanistan, as well as the May 2002 "Physician's Summary" portion of the document in which the examiner acknowledged the Veteran's report of cramps, numbness, and leg pain, but did not assign a diagnosis. In addition, the November 2013 examiner failed to discuss the Veteran's July 2002 post-service complaints of left ankle and knee pain that caused calf pain and numbness. The November 2013 examination report is further unclear as to whether the Veteran or the examiner stated that the Veteran's restless leg syndrome began in "2000 or 2001," which was during the Veteran's period of active duty. The Board thus finds that the November 2013 VA examination is insufficient. Thus, the Board finds that to comport with the February 2015 joint motion, and because the November 2013 VA examiner's report was not based on an accurate statement of facts, the case must be remanded so that another examination and nexus opinion can be obtained.
In view of the foregoing, the case is REMANDED for the following action:
1. The Veteran must be scheduled for a VA examination and notified that failure to report to any scheduled examination, without good cause, could result in a denial of her claims. See 38 C.F.R. § 3.655(b) (2014).
VA examination is necessary to determine the nature and etiology of any current right or left leg disability shown to be present. The VA examiner must review the Veteran's claims file and medical history, examine the Veteran, and provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any diagnosed right or left leg disorder, including in particular periodic limb movement disorder or restless leg syndrome or the like, either began during service or within one year of the Veteran's separation from active duty or is otherwise directly related to military service. (Opinion should be provided with respect to each leg. The examiner should be made aware that service connection is already in effect for left hip bursitis with iliotibial banditis, bilateral foot disabilities, and bilateral knee arthritis with patellofemoral syndrome. The leg issues now on appeal include any disability other than those already service connected.) The examiner must specifically outline the medical reasons to accept or reject the Veteran's assertions that she has experienced such problems continuously since military service.
In the context of any negative opinion, the examiner must specifically discuss each of the following:
* The April 2002 report of medical history, wherein the Veteran responded "Yes" when asked if she experienced leg cramps or trouble sleeping, and to which she attached an addendum complaining of trouble sleeping and "unexplained irritating numbness and pain in both calves";
* The May 2002 Physician's Summary portion of the report of medical history, in which the examiner acknowledged the Veteran's report of cramps, numbness, and left leg pain;
* The July 2002 post-service treatment visit for complaints of calf numbness and pain;
* The August 2002 testing of the Veteran's lower extremities, at which time no peripheral vascular disease was noted and no other diagnosis was assigned;
* The 2004 physical therapy treatments for what was then identified as "myalgia" of the legs; and
* The October 2007 diagnosis of periodic limb movement disorder by VA treatment providers.
The examiner must specify at what time the Veteran's current restless leg syndrome, periodic limb movement disorder, or any similar disorder had its onset. If found to be more than one year after service, the examiner must also discuss the statement on the November 2013 VA examination report that the Veteran's restless leg syndrome began in "2000 or 2001."
The examiner must review the Veteran's claims file, to include a copy of this remand. A well-reasoned etiological opinion must be provided with a detailed explanation for all conclusions reached by the reviewer. Citations to the record or relevant medical principles should be included as necessary to explain the opinion, and a complete rationale must be given for all opinions and conclusions expressed. All appropriate tests and studies must be accomplished, and all clinical findings must be reported in detail.
2. The adjudicator must ensure that the examination report complies with this remand and the questions presented in the examination request. If the report is deficient, it must be returned to the examiner for necessary corrective action, as appropriate.
3. After completing the requested actions and any additional notification and/or development deemed warranted, the claims remaining on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any benefit sought is not granted, the Veteran must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file is returned to the Board.
By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until she is notified. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).